Rights of Surrogate Mothers in India under the Surrogacy (Regulation) Act, 2021
The rights of surrogate mothers in India are governed by the Surrogacy (Regulation) Act, 2021, and the Surrogacy (Regulation) Rules, 2022. These laws protect surrogate mothers from exploitation, regulate medical procedures and establish safeguards relating to consent, health, insurance and pregnancy termination.
The key legal rights and protections available to surrogate mothers in India are:
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- Right to Informed Consent: A surrogate mother must provide written informed consent before undergoing a surrogacy procedure. The medical risks and possible consequences must be explained to her in a language she understands.
- Right to Withdraw Consent: Under Section 6(2) of the Surrogacy (Regulation) Act, 2021, a surrogate mother can withdraw her consent before the embryo is implanted in her womb.
- Right to Health Insurance: The intending couple or intending woman must obtain health insurance coverage for the surrogate mother for 36 months, including coverage for pregnancy-related and postpartum complications.
- Protection Against Forced Abortion: A surrogate mother cannot be forced to terminate her pregnancy. Any termination must comply with the Medical Termination of Pregnancy Act, 1971, and applicable surrogacy laws.
- Right to Medical Expenses: The law permits payment of medical expenses, prescribed expenses and insurance coverage, but prohibits commercial payments or monetary rewards for acting as a surrogate mother.
- Protection Against Exploitation: Commercial surrogacy, coercion and other prohibited practices are punishable under the Act. Surrogacy clinics and persons involved in such arrangements must comply with statutory requirements.
- Protection Against Repeated Surrogacy: A woman can act as a surrogate mother only once in her lifetime. The law also requires medical and psychological fitness certification before undergoing surrogacy.
Who Is a Surrogate Mother under Indian Law?
A surrogate mother is a woman who agrees to carry and give birth to a child through a legally permitted surrogacy arrangement, with the intention that the child will be handed over to the intending couple or intending woman after birth.
Under Section 2(1)(zg) of the Surrogacy (Regulation) Act, 2021, a surrogate mother is a woman who agrees to bear a child through surrogacy from the implantation of an embryo in her womb and fulfils the conditions prescribed under the Act.
The law recognises gestational surrogacy, where the surrogate mother carries an embryo created through assisted reproductive technology. She does not contribute her own egg to the surrogacy procedure.
The Act permits only altruistic surrogacy and prohibits commercial surrogacy.
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In altruistic surrogacy, the surrogate mother does not receive payment for carrying the child. However, the intending couple or intending woman must bear the permissible medical expenses, prescribed expenses and insurance costs.
The legal framework attempts to balance the reproductive interests of intending parents with the health, dignity and protection of surrogate mothers.
Legal Framework Governing the Rights of Surrogate Mothers in India
The primary legislation governing surrogacy in India is the Surrogacy (Regulation) Act, 2021, which came into force on 25 January 2022.
The Act regulates the conditions under which surrogacy may be undertaken, the eligibility of surrogate mothers, the responsibilities of intending parents and the functioning of surrogacy clinics.
The Surrogacy (Regulation) Rules, 2022, provide additional procedural requirements relating to consent, medical assessments, insurance and other matters.
Other important laws include:
- Medical Termination of Pregnancy Act, 1971: This legislation governs the circumstances and procedures under which a pregnancy may legally be terminated. Its provisions are particularly relevant to the reproductive rights and bodily autonomy of surrogate mothers.
- Assisted Reproductive Technology (Regulation) Act, 2021: This Act regulates assisted reproductive technology clinics and banks, including services that may be involved in creating embryos for surrogacy.
- Constitution of India: Constitutional principles relating to personal liberty, dignity, privacy and bodily autonomy under Article 21 provide an important foundation for understanding reproductive rights.
Together, these laws establish the legal framework within which a surrogate mother may participate in a surrogacy arrangement.
What Are the Rights of Surrogate Mothers in India?
The Surrogacy (Regulation) Act, 2021, provides several protections to ensure that surrogacy is undertaken voluntarily and under regulated medical conditions.
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These protections extend from the period before embryo implantation to pregnancy, childbirth and certain post-delivery medical complications.
Right to Informed Consent
The right to informed consent is one of the most important rights available to a surrogate mother.
Under Section 6 of the Surrogacy (Regulation) Act, 2021, no surrogacy procedure can be conducted without obtaining the surrogate mother’s written informed consent in the prescribed form.
Before providing consent, she must receive an explanation of the known side effects and after-effects of the procedure in a language she understands.
Informed consent requires more than merely obtaining a signature on a document. It involves ensuring that the surrogate mother understands the nature and potential consequences of the proposed medical procedure.
Important aspects of informed consent include:
- Understanding Medical Risks: The surrogate mother must be informed about the known risks associated with the surrogacy procedure. These may include complications relating to embryo implantation, pregnancy and childbirth.
- Voluntary Participation: Consent must reflect the woman’s voluntary decision. Coercion or improper pressure is inconsistent with the requirement of informed consent.
- Written Documentation: Consent must be recorded in the prescribed manner to establish that the legally required authorisation has been obtained.
- Explanation in an Understandable Language: The relevant medical information must be communicated in a language the surrogate mother understands so that she can make an informed decision.
This requirement protects a woman’s ability to make decisions concerning medical procedures involving her body.
Right to Withdraw Consent Before Embryo Implantation
Section 6(2) of the Surrogacy (Regulation) Act, 2021, expressly recognises the right of a surrogate mother to withdraw consent before the implantation of the human embryo in her womb.
This means that a woman who initially agrees to become a surrogate mother can change her decision before embryo implantation.
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The statutory right is important because participation in a surrogacy arrangement involves significant physical, emotional and medical responsibilities.
For example, a woman may initially agree to act as a surrogate mother but later reconsider after learning about the medical risks or discussing the arrangement with her family.
If the embryo has not yet been implanted, she can withdraw her consent under Section 6(2).
However, this particular statutory right has a clear limitation. The provision expressly allows withdrawal before embryo implantation. It does not establish an unrestricted right to cancel the surrogacy arrangement after implantation.
After implantation, questions concerning pregnancy termination and medical consent must be examined under the applicable reproductive healthcare laws.
Right to Health Insurance Coverage
A surrogate mother is entitled to statutory protection through health insurance.
Under Section 4(iii)(a)(III) of the Surrogacy (Regulation) Act, 2021, read with Rule 5 of the Surrogacy (Regulation) Rules, 2022, the intending couple or intending woman must obtain health insurance coverage for the surrogate mother.
The insurance must cover a period of 36 months and provide sufficient coverage for complications arising from pregnancy, including postpartum delivery complications.
This requirement is important because medical complications may occur during pregnancy, childbirth or after delivery.
The insurance protection is intended to address medical and financial risks arising from the surrogacy arrangement.
For example, if a surrogate mother experiences a pregnancy-related complication requiring treatment after childbirth, the prescribed insurance coverage is intended to provide protection for covered medical expenses.
The actual expenses payable depend on the applicable insurance policy and its coverage.
Insurance is therefore a mandatory safeguard under the surrogacy framework rather than an optional benefit provided by intending parents.
Protection Against Forced Abortion
A surrogate mother is legally protected against being forced to terminate her pregnancy.
Section 10 of the Surrogacy (Regulation) Act, 2021, regulates abortion in surrogacy arrangements.
The provision must be read alongside the Medical Termination of Pregnancy Act, 1971, which establishes the legal conditions for terminating a pregnancy.
The surrogacy legislation requires written consent and compliance with the applicable legal requirements, including authorisation by the appropriate authority as prescribed.
The prohibition against forced abortion is particularly important because disagreements may arise between intending parents and the surrogate mother during pregnancy.
For example, intending parents may seek termination after receiving information about a possible foetal abnormality.
Such a request cannot, by itself, justify forcing the surrogate mother to undergo an abortion.
Pregnancy termination must take place within the legal framework, including the requirements relating to medical opinion, consent and applicable statutory conditions.
The surrogate mother’s bodily autonomy and the legal requirements governing pregnancy termination remain central considerations.
Right to Medical Expenses and Healthcare Protection
A surrogate mother is entitled to have permissible medical expenses associated with the surrogacy arrangement covered.
Section 2(1)(b) of the Surrogacy (Regulation) Act, 2021, defines altruistic surrogacy in a manner that permits medical expenses, other prescribed expenses and insurance coverage.
This creates an important distinction between lawful expense coverage and prohibited commercial remuneration.
Permissible expenses may relate to medical treatment and other expenses recognised under the applicable legal framework.
Medical care associated with surrogacy can involve different stages, including:
- Pre-Pregnancy Medical Examination: Medical assessments help determine whether the woman satisfies the prescribed conditions for acting as a surrogate mother.
- Assisted Reproductive Procedures: Medical procedures involving embryo implantation must be conducted in accordance with the applicable laws and regulatory requirements.
- Pregnancy-Related Healthcare: Appropriate medical supervision and treatment may be required throughout pregnancy.
- Childbirth and Postpartum Care: Medical treatment may also be necessary during delivery and in the period following childbirth, particularly when complications occur.
However, the law does not permit payment merely as a reward for carrying the child.
The distinction is that legitimate medical protection and prescribed expense coverage are permitted, while commercial payments for surrogacy services are prohibited.
Protection Against Commercial Exploitation
Protection from commercial exploitation is a central objective of the Surrogacy (Regulation) Act, 2021.
The Act prohibits commercial surrogacy and restricts the practice to legally permitted altruistic arrangements.
Commercial surrogacy generally involves providing financial compensation, rewards or other prohibited benefits in exchange for carrying a child, beyond the expenses and insurance permitted by law.
The prohibition is intended to prevent women from being treated as commercial providers of reproductive services.
It also seeks to address concerns involving economically vulnerable women, intermediaries and unauthorised surrogacy arrangements.
Section 38 contains provisions dealing with serious offences, including exploitation of surrogate mothers.
Certain offences under the Act may attract imprisonment extending to ten years and a fine extending to ₹10 lakh.
The penalties are intended to discourage unlawful commercial arrangements and other exploitative practices.
Nevertheless, the prohibition of commercial surrogacy remains an important subject of legal and ethical debate, particularly in relation to reproductive autonomy and the economic position of surrogate mothers.
Right to Medical and Psychological Assessment
Section 4 of the Surrogacy (Regulation) Act, 2021, requires a woman intending to act as a surrogate mother to obtain a certificate of medical and psychological fitness from a registered medical practitioner.
This requirement is intended to ensure that the woman satisfies the necessary health conditions before participating in surrogacy.
Medical assessment may help identify health conditions that could affect the safety of pregnancy.
Psychological assessment is also relevant because surrogacy can involve emotional and psychological challenges.
The requirement operates as a protective measure as well as a statutory eligibility condition.
However, medical and psychological fitness certification should not be confused with a general guarantee that pregnancy will be free from complications.
Even where a woman is medically fit before implantation, pregnancy may involve unforeseen health risks.
Consequently, informed consent, medical supervision and insurance remain important additional safeguards.
Protection Against Repeated Surrogacy
Indian surrogacy law restricts how often a woman may act as a surrogate mother.
Under Section 4(iii)(b)(IV), a woman can act as a surrogate mother only once during her lifetime.
Rule 6 of the Surrogacy (Regulation) Rules, 2022, also restricts the number of attempts at surrogacy procedures to three.
These two limitations address different matters.
The lifetime restriction concerns how often a woman can act as a surrogate mother, while the procedural restriction concerns the permitted number of attempts.
The objective is to prevent repeated exposure to the physical and medical risks associated with surrogacy.
Repeated pregnancies and assisted reproductive procedures may involve health risks, making such safeguards relevant to the protection of surrogate mothers.
Who Can Become a Surrogate Mother in India?
Not every woman is legally eligible to act as a surrogate mother.
Section 4 of the Surrogacy (Regulation) Act, 2021, prescribes specific eligibility conditions.
A woman intending to become a surrogate mother must generally satisfy the following requirements:
- Marital Status: She must be an ever-married woman, meaning a woman who is or has previously been married. The law does not limit eligibility exclusively to women who are currently married.
- Age Requirement: She must be between 25 and 35 years of age on the day of implantation.
- Own Child: She must have a child of her own, as required under the statutory eligibility conditions.
- Medical and Psychological Fitness: She must obtain the prescribed medical and psychological fitness certification from a registered medical practitioner.
- No Use of Her Own Gametes: A surrogate mother cannot provide her own gametes for the surrogacy procedure.
- Lifetime Restriction: She must not have previously acted as a surrogate mother in violation of the statutory once-in-a-lifetime limitation.
These conditions are mandatory eligibility requirements rather than optional guidelines.
The Act also requires compliance with the broader conditions applicable to the proposed surrogacy arrangement, including relevant medical and regulatory approvals.
Can a Surrogate Mother Keep the Child after Birth?
A surrogate mother does not ordinarily have the legal right to retain the child merely because she has carried and delivered the child under a valid surrogacy arrangement.
Section 8 of the Surrogacy (Regulation) Act, 2021, addresses the status of a child born through surrogacy.
It provides that a child born through a surrogacy procedure shall be deemed to be the biological child of the intending couple or intending woman and shall have the rights and privileges available to a natural child under applicable law.
Consequently, the legal parentage of the child is attributed to the intending couple or intending woman under the statutory framework.
The surrogate mother’s role in carrying the pregnancy does not automatically confer parental status under a valid surrogacy arrangement.
However, issues involving unlawful arrangements, disputes about consent or failures to comply with statutory requirements may require separate legal examination.
The position concerning legal parentage must also be distinguished from the surrogate mother’s rights relating to pregnancy, medical treatment and bodily autonomy.
Can Intending Parents Abandon a Child Born through Surrogacy?
The Surrogacy (Regulation) Act, 2021, prohibits the abandonment of a child born through surrogacy on specified grounds.
Section 7 addresses the prohibition against abandoning a child born through surrogacy, including abandonment because of birth defects, genetic defects, medical conditions or other circumstances covered by the provision.
This protection is significant for surrogate mothers because abandonment by intending parents could otherwise create serious legal, financial and emotional difficulties after childbirth.
The statutory framework places responsibility on intending parents and protects the interests of the child.
A child born through surrogacy is therefore not treated as a child whose acceptance depends on the preferences of intending parents after birth.
What Are the Responsibilities of Intending Parents Towards a Surrogate Mother?
The Surrogacy (Regulation) Act, 2021, imposes several obligations on the intending couple or intending woman.
These responsibilities help ensure that the surrogacy arrangement complies with the law and does not expose the surrogate mother to prohibited practices.
Important responsibilities include:
- Obtaining Mandatory Insurance: The intending couple or intending woman must purchase the prescribed insurance coverage for the surrogate mother for 36 months.
- Covering Permitted Expenses: Medical expenses and other prescribed expenses associated with altruistic surrogacy must be addressed without converting the arrangement into prohibited commercial surrogacy.
- Ensuring Legal Compliance: The surrogacy arrangement must satisfy the eligibility, certification and procedural requirements established under the Act and Rules.
- Respecting Medical Consent: Intending parents cannot override the statutory requirements relating to informed consent, withdrawal of consent before implantation or lawful pregnancy termination.
- Accepting Legal Responsibility for the Child: The intending parents must comply with statutory obligations concerning the child born through surrogacy, including the prohibition against abandonment.
These obligations are essential to maintaining the distinction between a lawful altruistic arrangement and an exploitative or otherwise prohibited surrogacy arrangement.
What Happens If the Rights of a Surrogate Mother Are Violated?
Violations of surrogacy law may attract criminal penalties and regulatory action.
The Surrogacy (Regulation) Act, 2021, establishes restrictions on the conduct of intending parents, clinics, medical professionals and other persons involved in surrogacy.
Section 38 deals with certain serious offences, including exploitation of surrogate mothers and other prohibited conduct.
Section 39 separately addresses punishment for specified contraventions by medical professionals and persons associated with surrogacy clinics.
Depending on the nature of the violation, legal consequences may include imprisonment, fines and regulatory action against the clinic or persons concerned.
Legal Remedies Available to Surrogate Mothers
Where a surrogate mother experiences coercion, exploitation or another suspected violation, the appropriate legal response depends on the conduct involved.
Possible courses of action include:
- Complaint to Regulatory Authorities: Complaints concerning unlawful surrogacy practices or regulatory violations may be brought before the appropriate authorities under the applicable statutory framework.
- Criminal Complaint: Conduct amounting to an offence under the Surrogacy (Regulation) Act or another applicable criminal law may be reported to the competent authorities.
- Medical Negligence Proceedings: Where a surrogate mother suffers harm because of negligent medical treatment, remedies may arise under applicable laws governing medical negligence, depending on the facts.
- Enforcement of Insurance Entitlements: Disputes concerning insurance coverage may be addressed through the procedures applicable to the relevant insurance policy and insurance law.
The availability of a remedy depends on the circumstances of the case and the legal requirements governing that remedy.
Constitutional Rights of Surrogate Mothers in India
The rights of surrogate mothers are also connected with broader constitutional principles.
Article 21 of the Constitution of India protects life and personal liberty and has been interpreted by the Supreme Court to include important aspects of dignity, privacy and bodily autonomy.
These principles are relevant when examining the reproductive decisions and medical treatment of surrogate mothers.
Right to Privacy and Reproductive Autonomy
In K.S. Puttaswamy v Union of India (2017), the Supreme Court recognised privacy as a fundamental right under the Constitution.
The judgment discussed privacy in relation to bodily integrity, autonomy and personal decision-making.
These constitutional principles provide an important foundation for examining medical consent and reproductive choices.
Similarly, in Suchita Srivastava v Chandigarh Administration (2009), the Supreme Court recognised reproductive choice as an aspect of personal liberty under Article 21.
The Court emphasised the importance of a woman’s reproductive autonomy and bodily integrity.
Although these judgments did not establish an unrestricted constitutional entitlement to undertake surrogacy, their principles are relevant to understanding the reproductive rights of women participating in reproductive healthcare arrangements.
Right to Dignity and Bodily Integrity
A surrogate mother retains her dignity and bodily integrity throughout the surrogacy process.
Participation in a lawful surrogacy arrangement does not eliminate the need for medical consent or authorise treatment contrary to applicable law.
The statutory protections relating to informed consent, pregnancy termination and medical treatment must therefore be understood alongside the constitutional importance of personal liberty and bodily autonomy.
Challenges in Protecting the Rights of Surrogate Mothers
Despite the legal safeguards established under the Surrogacy (Regulation) Act, 2021, several issues remain relevant to the protection of surrogate mothers.
Restrictions on Reproductive Choice
The prohibition of commercial surrogacy limits the circumstances in which women may participate in surrogacy arrangements.
Supporters of the prohibition argue that it reduces the risk of commercial exploitation, particularly among economically vulnerable women.
Critics question whether a complete prohibition on commercial compensation unnecessarily restricts women’s reproductive autonomy and economic decision-making.
The debate involves balancing protection from exploitation against the freedom to make reproductive choices.
Financial Protection under Altruistic Surrogacy
The altruistic model permits medical expenses, prescribed expenses and insurance coverage but excludes commercial remuneration.
This raises questions about whether the permitted protections adequately address the physical burden, time commitment and possible financial consequences of pregnancy.
Insurance provides an important safeguard against covered medical complications, but it is not equivalent to wages or comprehensive compensation for undertaking surrogacy.
Effectiveness of Consent Safeguards
The law requires informed written consent, but meaningful consent also depends on the woman’s ability to understand medical information and make decisions without improper pressure.
Social relationships, financial circumstances and unequal bargaining positions can influence reproductive decisions.
Ensuring that consent is genuinely informed and voluntary remains important to the effective protection of surrogate mothers.
Postpartum Healthcare
The requirement of 36 months of health insurance recognises that complications may arise after childbirth.
However, the effectiveness of this protection depends on the insurance policy, the nature of its coverage and access to appropriate medical treatment.
Clear documentation and compliance with statutory requirements are therefore important aspects of protecting surrogate mothers after delivery.
Difference Between Rights and Restrictions of Surrogate Mothers
The law provides protections to surrogate mothers while also placing limits on their participation in surrogacy.
| Aspect | Legal Position in India |
| Informed consent | Written informed consent is mandatory under Section 6. |
| Withdrawal of consent | Permitted before embryo implantation under Section 6(2). |
| Health insurance | Mandatory coverage for 36 months under the Act and Rules. |
| Medical expenses | Permitted within the altruistic surrogacy framework. |
| Commercial compensation | Prohibited under the Act. |
| Pregnancy termination | Governed by Section 10 and the Medical Termination of Pregnancy Act, 1971. |
| Eligibility age | Between 25 and 35 years on the day of implantation. |
| Medical fitness | Prescribed medical and psychological fitness certification is required. |
| Repeated surrogacy | A woman may act as a surrogate mother only once in her lifetime. |
| Own gametes | A surrogate mother cannot provide her own gametes. |
| Legal parentage | The child is deemed to be the biological child of the intending couple or intending woman under Section 8. |
| Protection against exploitation | Unlawful practices may attract criminal penalties and regulatory consequences. |
Conclusion
The rights of surrogate mothers in India are primarily protected by the Surrogacy (Regulation) Act, 2021, and the Surrogacy (Regulation) Rules, 2022. The legislation establishes safeguards relating to informed consent, withdrawal of consent before embryo implantation, health insurance, medical expenses, pregnancy termination and protection from exploitation.
The law also prescribes eligibility conditions and restricts surrogacy to altruistic arrangements. While these restrictions are intended to prevent exploitation and protect women’s health, they raise broader questions concerning reproductive autonomy and financial protection.
The effectiveness of the legal framework ultimately depends on informed consent, responsible medical practices, adequate healthcare coverage and proper enforcement of statutory safeguards. Protecting the health, dignity and bodily autonomy of surrogate mothers remains central to the lawful practice of surrogacy in India.
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